Editor's Note :

We expect one or more decisions in argued cases on Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.Wednesday's live blog will be available here.

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Arizona v. United States: S.B. 1070

Today in the Community we return to Arizona v. United States, which we have previously discussed in the Community; several experts also weighed in on the case during our symposium this summer. On December 9, the Justices will consider the petition during their private Conference. If the Justices act on Arizona’s petition, we could know as soon as December 12 whether the Court will hear the case. The question that Arizona has presented in its petition is whether federal immigration laws preclude Arizona’s efforts at cooperative law enforcement and impliedly preempt four provisions of its controversial immigration law, S.B. 1070, on their face.

As Tom announced yesterday, we have modified the format of the Community slightly to allow more time on each topic. We will continue discussion of this case for the rest of the week, examining a new subtopic each day.

Kali Borkoski– 0 Promoted Comments

There are strong views on both sides of the policy debate as to whether SB 1070 is good or bad. Although the Court may not overtly decide the case on the basis of what it views to be the wiser policy outcome, discuss whether you view the law as good policy and, either way, whether you think the Justices’ intuition on the same question may play some role in their ultimate decision.

Ben Winograd– 1 Promoted Comment

SB 1070 is poor public policy. It is poorly reasoned, poorly crafted, and—if the Supreme Court lifts the pending injunction—is bound to be poorly implemented. It was conceived not by legislators in Phoenix but outside lawyers specifically hoping to provoke a legal challenge. And though the Justices may empathize with the people of Arizona, those feelings are unlikely to impact their decision to review and/or overturn the ruling below.

The fundamental problem with SB 1070 is its basic assumption that whether an immigrant is “unlawfully present” is a simple yes-or-no question. In truth, determining the answer can require years of litigation and generate different responses from different federal agencies. There is a reason people say immigration law is more complicated than any field but tax law. Even the Supreme Court makes simple mistakes when dealing with the subject. In Chamber of Commerce v. Whiting, for example, Chief Justice Roberts wrongly assumed that immigrants with final removal orders can never lawfully work in the country (see page 17 of the opinion). As one immigration lawyer quickly pointed out, however, federal regulations set forth numerous ways by which immigrants with outstanding removal orders can still obtain employment authorization.

Thrusting local law enforcement agents into this thicket is not a wise idea. Local police are no more competent to identity violators of federal immigration law than they are to spot breaches of other federal regulatory regimes, such as insider trading. As District Judge Marsha Blackburn noted (pp. 76-77) in discussing a similar provision of Alabama’s immigration law, inviting untrained local officers to make spot determinations about immigration status is likely to enmesh municipalities in litigation for Fourth Amendment violations. And from a public safety perspective, to say that police must investigate the status of persons they suspect of being deportable is to say it is acceptable for undocumented immigrants—or those with whom they work or live—to fear informing the authorities when they are victims or witnesses of crime.

Ironically, the passage of SB 1070 coincided with the most significant downturn in illegal immigration in decades. During the most recent fiscal year, apprehensions along the southern border fell to the lowest levels since the early 1970s. Meanwhile, interior enforcement of the immigration laws is more robust than at any time in the nation’s history. Since the start of the Obama Administration, the government has carried out nearly 1.2 million deportations—a pace that, if continued for two full terms, would rival the total figure for the Clinton, Reagan, and both Bush presidencies combined. As these figures suggest, claims the federal government does not enforce the immigration laws are simply not true.

Jay Sekulow– 3 Promoted Comments

In a previous case, the Court acknowledged that states have some “power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.” To the extent Justices focus on policy at all, it will be on the interplay between the federal government and the states in this unique area where the federal government has plenary authority but the states suffer almost exclusively the effects of ineffective federal enforcement policy.

Toni Massaro– 1 Promoted Comment

Whether SB 1070 is “good policy” depends on one’s perspective about law and policy, of course. But it is hard to see how this is anything but a tragic piece of legislation –even if one places to one side the fundamental normative issues regarding how America should treat its immigrants and undocumented persons, as a matter of fundamental justice, as well as law.

First, SB 1070 was poorly crafted. It was designed outside the state, and fits awkwardly (at best) into existing state laws. This already has led to knotty and baffling questions of what it even means. Law enforcement and their legal counsel immediately raised serious questions about this, as well as concerns about how its literal enforcement might actually hamper their efforts to secure public safety.

Second, SB 1070 is bad for the immigration law and policy. This was a politically charged, chest-thrusting, “throw it against the wall and see what sticks” measure designed to challenge, if not defy, the federal government rather than work through the massively complicated legal and policy questions that federal immigration law presents as it intersects with traditional enclaves of state and local power. It was more political posturing than political craftsmanship. This reduces our ability to address the real problems of fixing immigration law and policy, and further undermines public confidence in government’s ability to engage in effective, bipartisan policymaking.

“States’ rights” should include states’ responsibility, especially when a state is insisting on more cooperative federalism. Openly defying the federal government and daring it to respond is a poor way to start any intergovernmental conversation that will require compromise and shared governance. Of course, in immigration law and policy, the federal government has similar responsibilities, which it has failed to meet.

Third, SB 1070 has had extremely harmful expressive and community effects on people within Arizona. Legislation that is this divisive, and that is interpreted so widely as aggressively –even cruelly– hostile to a vulnerable population is harmful in and of itself. Friends and neighbors were wounded. Community internal trust was eroded. Political community was frayed.

Fourth, SB 1070 likely will be bad for the courts. There will be no good outcome here, no matter how the case is resolved by the Court. The outcome likely will be used as a political parry to a political thrust, even if the Court works hard to resolve the matter on strictly “legal” grounds. When legislatures give raw political messes like this to the courts and ask them to resolve them, nobody wins.

Fifth, SB 1070 has had a negative effect on the state’s economy, –which the state can ill afford. This hurts all Arizonans, and all who depend upon them.

Finally, SB 1070 sends a wildly distorted image of Arizona’s complex peoples to the nation. Senator Pearce was recalled, which was widely reported and linked to the SB 1070 legislation and its aftermath. And the nation saw how Arizonans come together in times of crisis, after the horrific shootings here last January. But significant reputational damage already has been done, in terms of the nation’s very skewed (almost defamatory) view of Arizona. The face of a wonderful state that is richly diverse, red and blue, native and non-native, urban and wildly rural, ideologically pluralistic , and distinctively open –in so many ways – to cultural and ethnic complexities, appears one-dimensional , insular, and hyper-partisan. SB 1070 turned Arizona into a sound bite, tailor-made for today’s sensationalist journalism to compress and exploit. And any public leader who cares about the state as a whole, as a mosaic, should have anticipated this and worked very hard to prevent it.

If some policy good does come of this, perhaps it will be as a cautionary tale, and as occasion for a “stop and think” moment for all policy makers seeking to promote the public good with minimal public harm as we all face agonizing problems that defy easy or one-party solutions.

Bill Olson– 1 Promoted Comment

The United States government’s position in Arizona v. United States, is based upon the erroneous premise that the States have no legitimate role in the enforcement of immigration and naturalization laws, except for the ones expressly assigned to them by Congress. Therefore, the United States government wrongfully assumes, without any regard for the sovereign concerns of the States, that it can pursue an immigration policy that takes into account only federal “law enforcement priorities, foreign-relations considerations, and humanitarian concerns.”

As we argue in our brief on behalf of the U.S. Border Control, and others, the United States Government is obliged by the United States Constitution’s federal structure to shape its immigration and naturalization policy in such a way as to preserve the separate and independent existence of the States. More particularly, the United States Government is obliged by the Fourteenth Amendment’s dual citizenship provision to recognize and honor the legitimate interest of the States to preserve their integrity as sovereign political and economic communities. Finally, the United States Government has the constitutional duty to defend the States from illegal immigrant invasion and, in the event that the United States fails in performing that duty, a State may take action in self-defense, as Arizona has done, adopting its policy of “attrition by enforcement.”

Lynne Kohm– 1 Promoted Comment

Arizona’s efforts with SB 170 are an indicator to the members of the Court and to the general public that the sense of federal over regulation in immigration law combined with a lack of federal enforcement of current immigration law pragmatically pushes States into stepping in to regain order and safety in their jurisdiction. What is more troubling is that a lack of clear immigration policy can lead to disquieting dangers for state regulation of domestic relations, as well as for families and children. Immigration policy that harms children harms the future of the state, and the nation. Breaking families apart is one consequence of a regulatory policy that needs reform, particularly when one of its two express objectives is family reunification. Whether the Court will deal with all these concerns is, however, unlikely here, but may be part of the next challenge….for example, to a law such as that recently adopted in Alabama.

Jack Chin– 1 Promoted Comment

SB1070 and its cousins are clearly based on the idea that justice should be done, though the Heavens fall. Recalled Arizona senator Russell Pearce, one of the parents of SB1070, was not motivated by social or economic effects; the point was the principle of the thing, a naive view that if laws are broken, then there must be a governmental response.

On the other hand, even if the policy implications are dreadful, I doubt that will be particulalry important to a majority of the Supreme Court. In three-strikes cases, and drug cases, the Suppreme Court has upheld policies which were at least as costly, harmful and ineffectual as SB1070. The question will be state power.

Kali Borkoski– 0 Promoted Comments

Is S.B. 1070 pre-empted by federal immigration laws as a textual matter? Relatedly, are the four enjoined provisions differently situated with respect to the text of the Immigration and Naturalization Act, so that some might be pre-empted while others are not?

Kali Borkoski– 0 Promoted Comments

Looking at the merits, discuss whether the Court should (or will) decide the case on the basis of the text of the INA, or whether it might instead give more weight to some of the structural constitutional issues involving the balance of power between the executive branch and the states on this issue. (See, for example, Roderick Hills’s symposium piece for an example of an argument that the Court might be better off if it were to drop the pretext of relying on the INA’s text and instead answered the tougher question about whether the president or the states are entitled to deference in determining immigration policy.)

Carol Swain– 1 Promoted Comment

The balance of power between the states and the federal government in regulating immigration should not be resolved purely by looking at the INA. Instead, the Court should seize the opportunity to reinvigorate federalism by examining the textual and structural constitutional issues that govern the balance of power between levels of government. Though immigration has traditionally been viewed as an area of structural preemption, there is no textual basis for such an interpretation. Laws governing immigrants once they have entered the country should be within the realm of state authority, comparable to health and police regulation. If authority over immigration is viewed under statutory preemption, states could share regulatory authority with the federal government, as long as the national government maintained its ability to preempt through federal statute. This would enable the national government to maintain a consistent immigration policy for governing exit and entry into the country, while allowing state governments the latitude to engage in policy innovation. Mutually beneficial partnerships between levels of government could result in improvements of the quality of life for citizens and alien residents. Conflicts of interests between federal and state laws can be resolved easily by allowing federal laws to trump the state laws.

Rick Su– 1 Promoted Comment

The Roberts Court has shown a distinct preference for deciding controversial cases on the narrowest grounds. Even so, given all the questions raised by the enactment of S.B. 1070 in Arizona, I doubt that the Supreme Court would limit its analysis entirely to the text of the INA without touching upon broader structural considerations such as the balance of power in our federal system. Given that federal preemption is the central claim against S.B. 1070, the default framework here is the familiar struggle between federal power and state rights. Yet this is not the only way in which the conflict over S.B. 1070 can be understood as a structural matter. Indeed, various efforts seem underway precisely to shift the institutional posture of the case towards other possible configurations.

On the one hand, even while Arizona and its supporters rally around state rights, there seems to be efforts to downplay the federal-state dichotomy. Indeed, as if acknowledging the strength of the federal plenary power over immigration and the dramatic expansion of its scope in recent decades, supporters of S.B. 1070 appear just as eager to portray the conflict over S.B. 1070 as a federal-federal dispute between different branches of the federal government, and different approaches to immigration enforcement by successive presidential administrations. It isn’t simply Arizona’s claim that S.B. 1070 is a response to federal inaction. Or its legal argument that several provisions of the INA, along with various federal initiatives, seem to anticipate if not outright encourage state enforcement efforts like S.B. 1070. As the amicus brief filed by 81 members of Congress in support of Arizona suggested most explicitly, the legal issue over S.B. 1070 can also be understood as a proxy battle between Congress and the President over the design and implementation of our nation’s immigration policy. And not just any President—by suggesting that past administrations had adopted different stances on this issue, the brief seems particularly interested in highlighting the partisan disagreement over the INA’s interpretation over time.

On the other hand, while critics of S.B. 1070 have predictably stressed the uniquely federal nature of immigration as a policy issue, they have also sought to undermine the allure of state rights from within. Indeed, opponents of S.B. 1070 have not been shy about highlighting the internal conflicts over the law inside of Arizona itself. In its initial complaint, the Department of Justice took great care to supplement the filing with affidavits from several local officials in Arizona that were critical of S.B. 1070. Since then, lawsuits and amicus briefs filed on behalf of several of Arizona’s largest cities in support of the federal government against Arizona have furthered emphasized that S.B. 1070 does not reflect a monolithic local sentiment, and that striking it down will free them from the law’s unfunded mandates. The appeal of this reframing is not necessarily as a legal challenge against state sovereignty; rather it seeks to undermine the moral standing of Arizona as a victim of federal intervention into local affairs. To be sure, the design of S.B. 1070 seems to have contributed much this unique federal-local alliance against the state; while Arizona takes credit for taking a strong stance on enforcement, S.B. 1070 pushes nearly all of the front-end screening costs down to local governments, and the back-end detention and removal costs up to the federal government.

Giving that the Supreme Court has yet agreed to hear the case against S.B. 1070, it may be too early to predict how the individual Justices will react to these competing efforts to move the conflict beyond the familiar federal power versus state rights framework. Ironically, given that they pull in opposite directions, the net effect may be in fact to steer the analysis towards a straight textual analysis of the INA after all. In any case, regardless of how (or if) the Court rule on S.B. 1070, these framing arguments will likely continue to have powerful influences in the court of public opinion. With the successful recall of S.B. 1070’s sponsor in the state legislature and waning support for the law in Arizona, there is a good chance it will be legislatively repealed or administratively deprioritized even if the injunction is eventually lifted. At the same time, sensational state efforts to regulate immigration in the past nearly all leave their most lasting marks, if any, on the political negotiations over future federal legislation. As such, irrespective of what happens to S.B. 1070 in court, its legacy will ultimately be decided not in the Supreme Court, but rather the next round of immigration reforms.

Jay Sekulow– 3 Promoted Comments

No, none of the provisions of S.B. 1070 are expressly preempted by the INA. The Obama administration claims that this is a case of implied preemption in which S.B. 1070 conflicts with the purposes of federal immigration law. It is possible the Supreme Court will determine that one or more of S.B. 1070’s provisions conflict with Congress’s purposes but we believe there are strong reasons to conclude that S.B. 1070 poses no conflict with federal immigration law because the state law mirrors federal law and simply provides state law enforcement mechanisms.

David LeRoy– 4 Promoted Comments

I do not understand why a state enforcing, in essence, a requirement of immigrants to carry and produce identification is such a controversial issue. They are the ones at the forefront in the battle against illegal immigrants. The majority of federal enforcement is at the border and in workplace raids. Are they too “bad public policy?” Is “good public policy” open borders and a wink and nod at those already here? Until CONGRESS, not the Court, takes up serious comprehensive immigration reform that stresses (1) visa reform based on economic need, (2) serious enforcement with penalties that hurt, (3) employment verification, and (4) yes, some form of limited amnesty for those already here long term, this will continue to be a problem and you will have laws like SB 1070 and its progeny. At least Arizona has the chutzpah to dare enforce a law that has been in existence since the 1950s.

Kali Borkoski– 0 Promoted Comments

Jay Sekulow– 3 Promoted Comments

The serious federalism issues presented suggest the Court will grant review. Several states have passed laws very similar to Arizona’s and the Obama Administration has sued to enjoin each one. The Court will need to resolve the preemption issues eventually. The only question is whether the Court will wait until more federal appellate courts weigh in.

Barnaby Zall– 1 Promoted Comment

Former Solicitor General Rex Lee once told me that the Supreme Court sits to “protect the harbor.” In evaluating the Petition in Arizona v. USA, the Court can dive into the weeds of numerous parts of Arizona’s SB 1070, or it can stand back and look at some of the bigger issues posed in the case. Most of the public debates gnaw at particular provisions, evaluating congressional intent and Executive choices. But there is a basic issue in this case, which is being repeated each time the U.S. Department of Justice sues a State for having enacted a similar law:

How much immigration enforcement is too much? And who decides?

This is not a new question for the Court. Last Term the Court considered the “balance” in enforcement priorities in Chamber of Commerce v. Whiting, No. 09-115, 131 S.Ct. 1968 (2011), and City of Hazleton v. Lozano, No. 10-772. In Whiting, the majority opinion rejected the Chamber’s argument that immigration law was so delicately balanced that aggressive State enforcement could impede federal enforcement. 131 S.Ct. at 1983. In Hazleton, the Court vacated a similar “balance” holding by the Third Circuit.

An even older decision, however, has returned in an odd context. In Nat’l Ctr. for Immigrants’ Rights, Inc. v INS, 913 F.2d 1350 (9th Cir. 1990), a panel of the Ninth Circuit held that the then-new 1986 Immigration Reform and Control Act showed that Congress did not want “harsh and inhumane” immigration enforcement. 913 F.2d at 1369. Judge Stephen Trott dissented, saying “The objective of [IRCA] was to stop illegal aliens from working, period.” NCIR, 913 F.2d at 1375 (Trott, J., dissenting). The Supreme Court reversed the Ninth Circuit panel, finding that immigration law enforcement was “forcefully recognized” in IRCA. 502 U.S. 183, 194 n.8 (1991). This might have settled the question of whether Congress was concerned about too much enforcement, but apparently not.

In its decision in USA v. Arizona, the Ninth Circuit panel held that it was bound by its 1990 NCIR decision. 641 F.3d 339, 357 (9th Cir. 2011)(“We are bound by our holding in [NCIR] regarding congressional intent.”). The NCIR reversal is cited as “on other grounds.” Other courts, including the recent Alabama District Court case partially upholding and partially enjoining a similar Alabama law, quote the Ninth Circuit’s revival of NCIR’s “no harsh or inhumane” enforcement theory.

So, in its role of guiding the lower courts, the Court might want to look at the effect of its earlier decisions considering congressional intent in IRCA. If the lower courts can simply ignore reversals by citing them as “on other grounds,” the effect of the Supreme Court’s jurisprudence is undermined. Independent of the merits, the fact that this issue is repeatedly appearing below might be enough to tip the Court into granting the Petition.

– 1 Promoted Comment

I would say that it is highly likely that the Supreme Court will grant cert on this issue because of a circuit split and the readily apparent federalism question. The issue of should cert be granted is a wholly different question that I will set aside for a moment.

The fact that an Alabama district court recently upheld parts of Alabama’s H.B. 56 similar to provisions in S.B. 1070 struck down by the 9th Circuit, will be a driving force in SCOTUS taking this case. While the Court does not always take a case involving a circuit split, past experience has shown that a circuit split increases the chances of cert being granted. In this case, the controversy is over provisions that are nearly exactly the same in both laws. Furthermore, it is foreseeable that this split could be compounded as several other states move to enact similar legislation, which will no doubt face also court challenges.

Second, this is not one of those instances where the Supreme Court is reaching to find jurisdiction in a case. The Constitutional challenges (though not necessarily the Constitutional answers) in this issue are readily apparent. It calls into question Article VI (Supremacy Clause), the Tenth Amendment, and the Fourteenth Amendment at the very least. The question of what a state can be prevented from doing within its own borders is an obvious Constitutional question, which would make it difficult for the court to justify not reviewing the case.

As far as whether the Supreme Court should or should not take the case, I think there is a strong argument that Congress should be the one to resolve this dispute rather than the Court. In fact, several people speaking out in favor of the law have said they hoped that it would lead to Congressional intervention. If Congress were to implement a reform to the immigration laws, it could clearly preempt Arizona and Alabama’s laws and settle the issue without the Court’s involvement. From an economics standpoint, Congressional intervention would be the ideal solution, because economists justify a strong national government in part by saying that it is necessary to prevent various market failures that could not be corrected through state government intervention. With immigration, we worry about states placing externalities on one another through a race to the top with immigration laws. For instance, several reports state that since the passing of H.B. 56 in Alabama, illegal immigrants have moved to other states. Assuming that it can be proven that illegal immigrants place a burden on the state (I say ‘assuming’ because this is a debate all its own, which I do not wish to go into in detail), then the state with the most stringent immigration laws can shift this burden to those states with less strict laws. This is the very reason we have federal immigration legislation. Taking that into account, it would seem like the duty of Congress to deal with this issue, rather than the court system.

However, having Congress take the issue rather than putting it to the court system completely ignores and even exacerbates the federalism question involved. In dealing with a question as to how far a state can go towards slowing illegal immigration without infringing on Congress’s right to legislate in that area, the Supreme Court is as close as we can come to a neutral third party. It is the most insulated from public pressures as well as from political pressures at the hands of Congress or the Executive Branch. Owing to the fact that this case is really more about federalism than it is immigration, Supreme Court intervention is our best option.

In looking at the various issues posed by this case, it seems likely that the Supreme Court should and will take this case to provide clarity among the various circuits as to how these different provisions will be treated.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. In case there are opinions, we will be live blogging both Tuesday and Wednesday. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]